Chandigarh

StateCommission

EA/402/2019

Maj.Gen. (Retd.) M P Singh - Complainant(s)

Versus

DLF Homes Panchkula Pvt. Ltd. - Opp.Party(s)

Smriti Kanwar Adv. & In Person

03 Aug 2021

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

 

Execution Application No.	:	402 of 2019
Date of Institution	:	22.10.2019
Date of Order	:	03.08.2021

 

1. Maj Gen. (Retd.) M.P.Singh S/o Late Sh. Jang Bahadur Singh r/o House No.240-A, Sector 2, Panchkula134 112.
2. Ms. Smriti Kanwar d/o Maj Gen. (Retd.) M.P.Singh r/o House No.240-A, Sector 2, Panchkula134 109

…..Decree Holders/Complainants.

Versus

1. DLF Homes Panchkula Pvt. Ltd., SCO No.190-191-192, Sector 8-C, Chandigarh through Sh.Rajeev Singh, Director & Sh.Gurjyot, Authorised Representative.
2. DLF Homes Panchkula Pvt. Ltd., Regd. Office at 12^th floor, DLF Gateway Tower Building, DLF City, Phase III, National Highway-8, Gurgaon, through its Managing Director, Sh.Mohit Gujral.
3. Sh.Rajeev Singh, Surojit Basak, Vishal Gupta, Sh.Gulbir Madan Singh Directors & Authorised Representative of DLF Homes Panchkula Pvt. Ltd., SCO No.190-191-192, Sector 8-C, Chandigarh and DLF Homes Panchkula Pvt. Ltd., DLF Gateway Tower Building, Second Floor, DLF City, Phase III,  Gurgaon-122002, Haryana.

…Judgment Debtors/Opposite Parties.

 BEFORE:  JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT.

                MRS. PADMA PANDEY, MEMBER.

                MR. RAJESH K. ARYA, MEMBER.

 

Argued by:

 

Maj. Gen. (Retd.) M.P.Singh, Decree Holder No.1 in person and on behalf of decree holder No.2.

Sh. Kunal Dawar, Advocate for the judgment debtors.

 

PER  PADMA PANDEY, MEMBER

                This execution application has been filed by the decree holders/complainants for execution of order dated 31.03.2017 passed by this Commission in Consumer Complaint bearing No.837 of 2016, which reads as under :-

“49.        For the reasons recorded above, all the complaints bearing Nos.836, 837, 838, 674, 790 and 978 all of 2016 are partly accepted, with costs, in the following manner:-

Consumer Complaints bearing No:

836, 837 and 838 all of 2016.

              In these three cases, the Opposite Parties have offered possession in October 2016 and November 2016, asking the complainants to deposit the amount(s) within six   months. As already discussed in Para 39 above, in case, any allottee is eager to get possession, he/she will complete formalities and deposit the amount before the period of six months, and pay the amount towards demand raised, except the demands towards, contingent VAT deposit and Advocate charges and Stamp duty, if any, and as and when, amount is deposited and necessary documents are submitted, possession will be handed over to complainant(s), by the Opposite Parties within 3 weeks.   The Opposite Parties, in each of these cases, are, jointly and severally, directed as under:-

(i)	To hand over physical possession of  the unit(s), allotted in favour of the complainant(s), complete in all respects, after removing the snags pointed out, to the complainant(s), within a period of 30 days, from the date  balance payment is made/documents are completed  by the complainant(s).
(ii)	Execute and get registered the sale deed in respect of the unit(s), in question, within one month from the date of handing over of possession to the complainant(s). The stamp duty, registration charges and incidental expenses, if any, shall be borne by the complainant(s).
(iii)	To pay compensation, by way of interest @12% p.a., on the deposited amount, to the complainant(s), with effect from 14.12.2014, 19.11.2013 & 26.12.2013 respectively up-till two months from the date of offer of possession i.e. up-to 14.01.2017, 28.12.2016 & 25.12.2016 respectively, within 45 days, from the date of receipt of a certified copy of this order, failing which, the said amount shall carry penal interest @15% p.a., instead of 12% p.a., from the date of default, till realization.              In case, the Opposite Parties fail to deliver possession within 30 days from the date of making payment by the complainants, for such delay, beyond 30 days, compensation by way of interest @12% p.a. on the deposited amount for each month, till possession is delivered, shall be payable by 10th of the following month and failure shall entail penal interest @15% p.a. instead of 12% p.a. till payment is made.
(iv)	Pay compensation in the sum of Rs.1,50,000/-, in each case, on account of mental agony, physical harassment and deficiency in service and Rs.35,000/- as litigation costs, in each case, to the complainant(s), within 45 days from the date of receipt of a certified copy of the order, failing which, the said amount shall carry interest @12% p.a., from the date of filing the complaint(s) till realization.

             In all these complaints, as agreed between the parties, the Advocate Charges shall not be charged by the Opposite Parties. The actual expenditure for registration of Sale Deed(s) besides Stamp duty and Registration charges, shall, however, be borne by the complainant(s).

              As agreed, the amount of contingent Vat deposit will not be insisted upon at this stage, subject to furnishing an affidavit by the allottee to make the payment as and when demanded by the Government. The amount of contingent vat, shall be payable by the complainant(s) as and when the same becomes payable by the Opposite Parties to the Government. The complainant(s) shall deposit contingent vat within three weeks from the date the same is paid by Opposite Parties to the Government and the complainant(s) are informed of this fact. Delay beyond three weeks from the receipt of notice shall attract simple interest @12% per annum.

 50.       However, it is made clear that in case, the complainant(s) have availed loan facility from any financial institution(s), such an institution shall have the first charge on the amount payable, to the extent, the same is due against the complainant(s).”

2.                Aggrieved against the aforesaid order, the judgment debtors filed First Appeal No.1012 of 2017 before the Hon'ble National Consumer Disputes Redressal Commission, New Delhi, wherein, vide order dated 13.06.2017, the said Commission upheld directions (i) & (ii) of this Commission with regard to handing over of possession and registration of sale deed and the remaining directions were stayed subject to deposit of Rs.5 lakhs with this Commission within a period of six weeks from that date.

3.                In compliance to the aforesaid order dated 13.06.2017 passed by the Hon'ble National Consumer Disputes Redressal Commission, New Delhi in First Appeal No.1012 of 2017, the judgment debtors deposited the amount of Rs.5,00,000/- vide order dated 30.08.2017 passed by this Commission in MA/858/2017, which was kept in Fixed Deposit Receipt initially for a period of one year.

4.                Thereafter, First Appeal No.1012 of 2017 was disposed of by the Hon'ble National Consumer Disputes Redressal Commission, New Delhi vide order dated 01.08.2019, which reads thus :-

            “1.    In all these Appeals, filed by either of the parties, namely, DLF Homes Panchkula Pvt. Ltd. (hereinafter referred to as the Developer) and the Consumers/Complainants, against different orders passed by the State Consumer Disputes Redressal Commission, UT at Chandigarh (hereinafter referred to as the State Commission), the Consumers have sought possession of the flats/apartments booked by them.  In some of the Cases, the Consumers/Complainants have also sought refund of the amount deposited by them.

2.       We have heard Learned Counsel for the Parties.  

3.       We find that the controversy regarding handing over delayed possession and claim of refund, along with interest, has been set at rest by the Hon’ble Supreme Court in DLF Homes Panchkula Pvt. Ltd. Vs. D.S. Dhanda, Etc. Etc. and DLF Homes Panchkula Pvt. Ltd. & Anr. Vs. Sudesh Goyal, Etc., II (2019) CPJ 117 (SC).  The Hon’ble Supreme Court has given the following directions:  

HANDING OVER DELAYED POSSESSION

“19.    Thus, we find that the complainant is entitled to interest from the Appellant for not handing over possession as projected as is offered by it but it is not a case to award special punitive damages as the one of the causes for late delivery of possession was beyond the control of the Appellant.  Therefore, in view of the settlement proposal submitted by the Appellant in earlier two set of appeals in respect of same project, and to settle any further controversy, the Appellant is directed as follows:

i)        To send a copy of the occupation certificate to the Complainants along with offer of possession.  The Appellant shall also direct the Jones Lang LaSalle – the real estate maintenance agency, engaged by the Appellant to undertake such maintenance works as is necessary on account of damage due to non-occupation of the flats after construction etc.

ii)       It shall be open to the Complainants to seek the assistance of the maintenance agency to attend to the maintenance work which may arise on account of non-occupation or on account of natural vagaries.

iii)      Such maintenance work shall be completed by the Appellant within two months of the offer of possession but the payment of interest at the rate of 9 per cent per annum will be for a period of two months from the date of offer of possession in all situations.

v)       Since the Complainants have been forced to invoke jurisdiction of the consumer forums, they shall be entitled to consolidated amount of Rs.50,000/- in each complaint on all accounts such as mental agony and litigation expenses etc.  The complainant shall not be entitled to any other amount over and above the amount mentioned above.

vi)      In case, the original allottee has transferred the flat, the transferee shall be entitled to interest at the rate of 9 per cent per annum from the date of expiry of three years from the agreement or from the date of transfer, whichever is later.”

REFUND OF AMOUNT

“21.    The Complainant in these cases have sought refund of the amount deposited by them with the Appellant.  The learned SCDRC passed an order on 04.08.2017 directing the Appellant as under:-

“i.       To refund the amounts of Rs.49,25,461/- along with simple interest @ 15% per annum, to the complainant, from the respective dates of deposits, till realization, within 45 days, from the date of receipt of a certified copy of this order, failing which, the Opposite Parties shall pay the aforesaid amounts alongwith simple interest @ 18% per annum, instead of 15% per annum, from the date of default till actual payments;

ii)       To pay an amount of Rs.35,000/- as litigation costs, to the complainant, within a period of 45 days from the date of receipt of a certified copy of the order, failing which, the Opposite Parties shall pay the aforesaid amount alongwith simple interest @ 15% per annum from the date of filing the complaint till actual payment.”

23.     We find that the grant of interest at the rate of 15% by SCDRC is highly excessive.  Since in other two set of appeals decided earlier, this Court has awarded interest at the rate of 9% per annum on the amount of refund, therefore, the order of SCDRC stand modified so as to pay interest at the rate of 9% per annum from the date of deposit till the date of refund.”

4.       Some of the Learned Counsels appearing for the Consumers have claimed that they be compensated by way of grant of interest as the Developer herein has physically not delivered the possession of the flats/apartments and was holding over. 

5.       As the controversy has been set at rest by the Hon’ble Supreme Court, we are not inclined to grant any further compensation.

6.       The payment be made to the Consumers/Complainants within 10 weeks from today.  Mr. Praveen Bahadur, Learned Counsel for the Developer herein, states that some amount has already been deposited before the State Commission.  He submitted that the Developer will give a statement of the amount payable in terms of the order of the Hon’ble Supreme Court and file an Affidavit before the State Commission, where-after the State Commission may release the said amount directly in favour of the Consumers/Complainants and the balance amount shall be paid by the Developer within the aforesaid period.

7.       The Consumers/Complainants shall also be entitled for a consolidated amount of Rs.50,000/- on account of mental agony and litigation expenses both in the cases of handing over delayed possession and refund.

8.       In addition to above, the statutory deposit, made by the Developer herein at the time of filing the Appeals, along with accrued interest, if any, be given to the respective Consumers/Complainants.

9.       All the Appeals are disposed of in terms referred to in Para-3 above.”     

                In view of the afore-extracted order passed by the Hon'ble National Consumer Disputes Redressal Commission, New Delhi, only change that was made as regards rate of interest, which has been brought down to 9% instead of 15% awarded by this Commission and a consolidated amount of Rs.50,000/- was awarded for mental agony and cost of litigation to the decree holders.

3.                As per the calculation sheet of the decree holders, an amount of Rs.13,15,614.43 is payable by the judgment debtors, out of which, the judgment debtors have already made the payment of Rs.11,65,078/- to the decree holders, which includes Rs.5,00,000/- deposited with this Commission.

5.                On perusal of the submissions filed by the judgment debtors, the delay compensation amount has been calculated on the amount deposited by the allottee and its calculation shall be taken effect of Agreement + 3 years upto offer of possession + 2 months.  As per the record of the judgment debtors, the detailed calculation and the amount deposited in this case works out to Rs.40,11,360.88, whereas, the decree holder has assumed an amount of Rs.44,45,327.25, which includes the credit of EPR (Early Payment Rebate) of Rs.2,74,978/- and transfer charges of Rs.1,58,992/-. The decree holders have calculated the compensation @9% on the said two amounts also thereby demanding an amount of Rs.13,15,614.43.

6.                In our opinion, we find that compensation is payable on EPR as has been held in various cases of this Commission and, therefore, an amount of Rs.2,74,978/- paid against EPR would attract compensation @9%, which the judgment debtors are bound to pay to the decree holders but whereas no compensation is payable on transfer charges.

7.                We, therefore, direct the judgment debtors jointly and severally as under :-

1. To pay compensation @9% p.a. from the respective dates of deposit on EPR amount of Rs.2,74,978/- in addition to the amount of Rs.11,65,078/- already paid by the judgment debtors to the decree holders, within a period of one month from the date of receipt of copy of this order, failing which, interest @9% p.a. shall accrue on the aforesaid amount from the date of passing of this order till realisation.
2. To complete the process of registration of sale deed/conveyance deed, if not already done, within a period of 30 days from the date of receipt of copy of this order.

8.                Office of this Commission is directed to release the remaining amount of Fixed Deposit Receipt i.e. interest accrued (Rs.59,992/-) alongwith interest, if any, accrued thereupon, in favour of the non-applicants/judgment debtors – Company i.e. DLF Homes Panchkula Pvt. Ltd.

9.                Accordingly, this execution application stands disposed of.

10.              Certified copies of order be given to the parties/their Counsel free of charge.

Pronounced.

03.08.2021                                                              Sd/-

[RAJ SHEKHAR ATTRI]

PRESIDENT

Sd/-

(PADMA PANDEY)

        MEMBER

 

Sd/-

(RAJESH  K. ARYA)

MEMBER

rb